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Best Ohio Employment Discrimination Attorney Help: Can I sue my employer for wrongful termination even if I was forced to retire because of age discrimination? I quit my job because the hostile work environment was intolerably discriminatory; can I sue for wrongful termination?

 Attorney, discriminate, my job, my boss, I was fired, Ohio, Cleveland, Cincinnati, Columbus, Toledo, Lawyer, retire, I am being discriminated against, sexually harassing me, sexual harassment, employer, employee, Brian Spitz, Our experienced employment discrimination lawyers have written extensively about what a wrongfully terminated employee has to prove in court in order to hold their employers responsible for their termination. (See What Is Public Policy Wrongful Termination?; What Damages Do I Get In Wrongful Termination Cases?; I Was Fired Today But Male Co-Workers Were Not!; I Was Fired Today For Reporting Wage Theft! ). In these employment law blogs, our employment discrimination lawyers explained that in most cases, the employee has to show that an employer took an “adverse action” against the employee because of the employee’s race/color, religion, gender/sex, national origin, age, or disability, or because the employee engaged in a protected activity, such as filing a Workers’ Compensation claim, taking FMLA, or being a whistleblower regarding health or safety issues. Further, we explained that “adverse action”, in most cases, involve termination. In other words the boss, manager, or supervisor “fired” the employee because of the worker’s race, gender, sex, age, religion, etc. But, does that mean that the employer has to “fire” the employee for there to be an “adverse action”? The simple answer is no! As our attorneys blogged about yesterday, an adverse action can also include demotions, pay cuts, or other actions that make your job really difficult. (See Can My Boss Deny Work Vehicles To Only Black Employees? I Need The Best Race Discrimination Lawyer In Ohio!).

In some cases, if the employee is able to show that the employer deliberately made the employee’s working conditions so intolerable that employee had no choice but to quit, the quitting can be considered “constructive” termination or discharge. In other words, even though the employer never actually fired the employee, the employee is considered terminated because of the employer’s behavior. To further explain this concept, consider the following scenario:

I was fired after I asked to take FMLA leave. My racist boss keeps harassing me at work and is creating a hostile work environment. I am being discriminated against by my manager because I’m a black woman. Can I sue my employer for race and gender discrimination? How do I sue my job for wrongfully firing me? Old Loyal is an employee of Youngee Company. Even though Old Loyal is 62 years old, he is healthy and able to perform his duties just like the other younger employees of Youngee Company. Old Loyal’s supervisor, however, thinks that thecompany would benefit from recruiting and replacing older employees with younger ones. To achieve this goal, the supervisor tells the older employees, including Old Loyal, that their positions are being eliminated and have to retire. Believing his supervisor, Old Loyal retires. Later, Old Loyal finds out that his position has not been eliminated but rather, someone younger and less experienced than him has been promoted to replace him. Old Loyal files an age discrimination and wrongful termination law suit against the supervisor and the company. In response, the company and the supervisor ask the court to dismiss the case because no adverse action was taken against Old loyal since the employee voluntarily retired.

Facing a similar situation, the court in Cardinai v. Cnty. Of Monroe responded to the request for dismissal in the following way:

A constructive discharge occurs when the employer “deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.” Id. (quoting Morris v. Schroder Capital Mgmt. Int’l, 481 F.3d 86, 89 (2d Cir. 2007)).

Defendant argues that because Plaintiff technically retired from his position, and therefore was not actually terminated by Monroe County, he must satisfy the standard for constructive discharge and show that his working conditions were intolerable. ECF No. 13-5, at 5-6, 10-11. But this logic rests on a distinction between being “fired” and being “explicitly told to resign,” which is untenable and has no support in the statutes or in the relevant case law. “Where there is evidence of a clear intent on the part of the employer to dispense with the employee’s services, and where that intent is the equivalent of a declaration that the services of the employee will no longer be accepted, discharge is established.” Havelick v. Julius Wile Sons & Co., 445 F. Supp. 919, 925 (S.D.N.Y. 1978).

In Havelick, the plaintiff’s employer requested that he take early retirement effective on a certain date and asked plaintiff to turn over his files. Id. at 924. Although defendants argued that plaintiff had taken voluntary early retirement under the company’s pension plan, the Court in Havelick rejected that argument outright. Id. at 925 (“It is abundantly clear that plaintiff’s services were terminated.”).

This case is indistinguishable from Havelick. Plaintiff alleges that his supervisor told him he “would be required to retire by the end of 2013, due to the elimination of his position.” ECF No. 1, at 4. Plaintiff does not contend he was forced out of his job indirectly; rather, Plaintiff’s allegation is that he was told in no uncertain terms that his position was being eliminated and that his services would no longer be accepted by Monroe County starting in 2014. Id. Of course, discovery may reveal that Plaintiff left his job under circumstances far more voluntary than those alleged in his complaint. But at this stage in the litigation, the Court must accept Plaintiff’s factual allegations as true and draw all reasonable inferences in his favor. Bell Alt. Corp., 550 U.S. at 572. Furthermore, Plaintiff’s burden of establishing a prima facie case of age discrimination is “de minimis.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466-67 (2d Cir. 2001) (citing Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir.1995)). The Court therefore finds that Plaintiff has sufficiently alleged that he suffered an adverse employment action for the purpose of his ADEA and NYSHRL claims.

As explained by United States District Court for the Western District of New York, an employer need not outright fire an employee for there to be an “adverse action” or a wrongful termination. If the employer either forces the employee out or creates an intolerable working environment for the employee, such that the employee has no but to quit, a claim for wrongful termination can be made by the employee through constructive discharge.

If you are en employee who thinks that your employer is forcing you out or making your working environment intolerable because of your race, age, gender, or religion, don’t hesitate to call the right attorney at 866-797-6040 to schedule a free and confidential consultation.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.

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